['Recruiting and hiring']
['Negligent Hiring / Retention']
04/26/2024
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Summary of differences between federal and state regulations
Employer immunity from disclosure claims
In Delaware, an employer/former employer may disclose to a prospective employer information about employee/former employee job performance, law violations, or abilities or inabilities related to the position held, unless he/she is not acting in good faith. An employer/former employer may be liable for disclosures not made in good faith. Lack of good faith may be shown if the employer/former employer disclosed information:
- That is knowingly false,
- To deliberately mislead or for a malicious intent,
- In violation of an agreement of nondisclosure, or
- That was confidential by law or regulation.
Employers who receive written requests for “service letters” from a health care, child care, personal or nutritional care facility must provide that facility with a signed service letter about the employee/former employee within 10 business days of the request. The required contents of the service letter are listed at Delaware Code 19-708.
Arrest record inquiries
In Delaware, employers may not acquire access to expunged records without a court order. Applicants or employees are not required to disclose expunged records. Other than expunged arrest records in Delaware, both the EEOC and Delaware have no laws or regulations specifically prohibiting arrest record inquiries. However, the EEOCs Notice N-915-061 says, “Where it appears that the applicant or employee engaged in the conduct for which he was arrested and that the conduct is job-related and relatively recent, exclusion is justified.” According to the Notice, the employer must evaluate whether the arrest record reflects the applicant’s conduct. It should, therefore, examine the surrounding circumstances, offer the applicant or employee an opportunity to explain, and, if he or she denies engaging in the conduct, make the follow-up inquiries necessary to evaluate his/her credibility. Since using arrests as a disqualifying criteria can only be justified where it appears that the applicant actually engaged in the conduct for which he/she was arrested and that conduct is job-related, the EEOC concludes that an employer will seldom be able to justify making broad general inquiries about an employee’s or applicant’s arrests. Since business justification rests on issues of job relatedness and credibility, a blanket exclusion of people with arrest records will almost never withstand scrutiny, according to Notice N-915-061.
Conviction record inquiries
In Delaware, employers may not acquire access to expunged records without a court order. Applicants or employees are not required to disclose expunged records. Other than expunged conviction records, both the EEOC and Delaware have no laws or regulations specifically prohibiting conviction record inquiries. However, the EEOC’s Notice N-915 says, “Where there is evidence of adverse impact, an absolute bar to employment based on the mere fact that the individual has a conviction record is unlawful under Title VII [of the Civil Rights Act of 1964, as amended].” According to Notice N-915, an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records is unlawful under Title VII in the absence of a justifying business necessity. To determine whether an employer’s decision was justified by business necessity, he/she must show that he/she considered three factors:
- The nature and gravity of the offense or offenses;
- The time that has passed since the conviction and/or completion of the sentence; and
- The nature of the job held or sought.
State
Contacts
Employer immunity from disclosure claims
Arrest record inquiries
Conviction record inquiries
Regulations
Employer immunity from disclosure claims
Delaware Code 19-708, Special employment practices relating to health care and child care facilities
Delaware Code 19-709, Employment information
Arrest record inquiries
Delaware Code Title 11, Section 4374, Disclosure of expunged records
Conviction record inquiries
Delaware Code Title 11, Section 4374, Disclosure of expunged records
Federal
Contacts
Employer immunity from disclosure claims
None.
Arrest record inquiries
Equal Employment Opportunity Commission (EEOC)
Conviction record inquiries
Equal Employment Opportunity Commission (EEOC)
Regulations
Employer immunity from disclosure claims
None.
Arrest record inquiries
None; however, EEOC published Notice N-915-061, September 7, 1990, "Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
Conviction record inquiries
None; however, EEOC published Notice N-915, February 4, 1987, "Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
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